Anaya: Maya Aboriginal Land and Resource Rights and the Conflict Over Logging in Southern Belize Maya Aboriginal Land and Resource Rights and the Conflict Over Logging in Southern Belize* by S. James Anaya* I. INTRODUCTION 1 In the last several years, the government of Belize, through its Ministry of Natural Resources, has granted at least seventeen concessions for logging on lands totaling approximately 480,000 acres in the Toledo District, its most southern political subdivision. The rural parts of the Toledo District that are affected by the concessions are inhabited primarily by Maya people, descendants of the Maya civilization that flourished throughout substantial parts of Mexico and Central America hundreds of years prior to European colonization in the Western Hemisphere. On November 29, 1996, Maya organizations initiated in the Supreme Court of Belize, the trial court of general jurisdiction, an action challenging the granting of the logging concessions. In the lawsuit, the Maya assert rights over lands and resources that are included in the concessions and seek to have the concessions enjoined and declared in violation of Maya rights.' "This Article is based substantially on a paper written by the author as part of a legal support project for the Maya of Belize, under the auspices of the Indian Law Resource Center. Special Counsel, Indian Law Resource Center; Professor of Law, The University of Iowa; B.A., University of New Mexico; J.D., Harvard University. The author thanks Bryan Chehock and Julie Ann Fishel for their assistance in the research for this article. The author also gratefully acknowledges the helpful comments of Kent McNeil, Steven Tullberg, and Deborah Schaaf on earlier drafts. 1. Belize is a relatively young country that gained its independence from Great Britain in 1981. It has a small, predominantly English-speaking population of about 200,000, of which approximately 10,000 are Maya. The non-Maya population is comprised of a variety of groups marked by diverse ethnic characteristics that reflect complex immigration and settlement patterns dating back to at least the early period of British rule in the nineteenth century. Although it has become a retirement destination for an increasing number of North Americans and Europeans, Belize shares many of the economic and social difficulties of its Central American and Caribbean neighbors. Unlike many other less developed countries, however, Belize has a well structured system of conservation programs that has earned it a reputation as an environmentally friendly place where natural wonders abound. Tourists from around the world are attracted to Belize's barrier reef-the second largest in the world and one of the healthiest coral habitats anywhere-and to inland resorts that provide access to lush tropical forests and animal sanctuaries. For a description of Belize and its tourist Published by Yale Law School Legal Scholarship Repository, 1998 1 Yale Human Rights and Development Law Journal, Vol. 1 [1998], Iss. 1, Art. 2 YALE HUMAN RIGHTS & DEVELOPMENT L.J. [Vol. 1 [2 The applicants in the litigation include the two major representative organizations of the Maya in the Toledo District, the Toledo Maya Cultural Council (TMCC), and the Toledo Alcaldes Association, the latter being comprised of the alcaldes, or principal authority figures, of each of the Maya villages in Toledo. The named respondents are the Attorney General of Belize, as the representative of the government, and the Minister of Natural Resources, as the government official primarily responsible for granting the concessions. In their initial pleading in the case, TMCC v. Attorney General of Belize,2 the Maya parties highlight the largest of the seventeen concessions, covering over 24,000 acres of pristine tropical forest, granted to the Malaysian conglomerate that operates in Belize as Atlantic Industries Ltd. The largest of the concessions being challenged by the Maya was issued to another, apparently related Malaysian company, Toledo Atlantic International Ltd., for logging on over 159,000 acres. 3 3 While the environmental threat presented by the logging concessions has raised concerns among urban elites in Belize and elsewhere, the Maya people of Toledo District are the ones most affected by them. The Maya of Toledo live in over thirty villages throughout the District, all of which are either within, or in close proximity to, the lands over which logging concessions have been granted. Lands around the villages that are used by the Maya for agricultural and other subsistence purposes, including hunting and gathering, are included in concession areas.4 [4 "From the standpoint of the Maya, the issue is not simply one of environmental degradation; it is more fundamentally one of ownership and control over the lands and resources at stake. The logging c6ncessions represent a model of development that succumbs to the profit-motivated interests of forces from outside the target locality that are eager to see the remaining natural resources of less developed countries converted into financial bounty. This model can be witnessed throughout parts of Central and South America, particularly in areas inhabited by indigenous peoples, where much of the world's remaining commercially viable stands of tropical timber exist. Governments claim for themselves the prerogative of industry, see http://www.turq.com/belize.html. Most of the environmentally protected areas that draw substantial earnings from tourism, however, are in the northern part of the country, well insulated by distance from the roar of bulldozers and the whir of chainsaws that are felling down trees in the southern Toledo District. Environmentalists and forestry experts have identified the logging in Toledo as a major threat to the ecology of the area, which includes a broad diversity of plant and wildlife species. See John D. Ivanko, On the ChoppingBlock; Logging in Belize, Earth Action Network, Nov. 21,1997, available in LEXIS, Nexis Library. Particular concern has been raised about siltation of the streams that feed into lagoons and sea waters surrounding the delicate reef at its southern extension. The problem, according to close observers of the situation, is not that forestry is inherently bad, but that the government of Belize is unwilling or unable to enforce elementary principles of sustainable forestry that would minimize environmental impacts and avert substantial long term or permanent damage. 2. TMCC v. Attorney Gen. of Belize, No. 510 11996] (Belize). 3. See Notice of Motion for Constitutional Redress at 2, TMCC (No. 510). 4. For a discussion of Maya land use patterns in relation to the logging concessions, see infra notes 134-154 and accompanying text. https://digitalcommons.law.yale.edu/yhrdlj/vol1/iss1/2 2 Anaya: Maya Aboriginal Land and Resource Rights and the Conflict Over Logging in Southern Belize 1998] Maya AboriginalLand and Resource Rights 19 disposing of natural resources, and they exercise this claimed prerogative in favor of commercial enterprises with, at best, secondary consideration of the legitimate interests of the people who may be affected by the resource development projects. 5 In their suit against the government, the Maya are directly challenging this model by asserting property rights over lands and forest resources that the government of Belize has encumbered and, by attempting to alter the government's course of conduct, to accommodate those rights. 5 The Maya are asserting land and resource rights on the basis of historical occupancy and ongoing customary land tenure. Early in this century, the British colonial administration established "reservations" for the benefit of several of the Maya villages within lands considered to be "Crown lands." These reservations, now on presumed national lands, continue to exist and include roughly half the Maya villages. In any event, the customary land tenure patterns of even those villages that were granted reservations extend well beyond the reservation boundaries. f6 The Maya parties assert rights over the aggregate territory of their customary land tenure independently of any government grant or specific act of recognition. Their Notice of Motion for Constitutional Redress seeks a declaration that the Maya people "hold rights to occupy, hunt, fish and otherwise use" specified lands "and that such rights of use and occupancy... , in accordance with the common law and relevant international law, arise from and are commensurate with the customary land tenure patterns of the Toledo Maya., 7 This pleading, moreover, seeks to establish these rights as protected by Articles 3 and 17 of the Belize Constitution which uphold property rights in general terms. 7 The remainder of this Article examines the Maya assertion of land and resource rights under the common law and international law, and argues that it has merit. As a former British colony, Belize is a common law jurisdiction, hence the reliance on the common law in the pleading by the Maya parties. The overarching frame of reference for the legal analysis in this Article, accordingly, is the common law as it exists or should be understood to exist in Belize in relation to the claimed "aboriginal rights" to lands and resources. The assessment of the relevant law relies 5. For a discussion of issues of sovereignty over natural resources, see NICO SCHRIJvER, SOVEREIGNTY OVER NATURAL RESOURCES: BALANCING RIGHTS AND DUnEs (1997). 6. The Maya parties appended two maps to their initial pleadings. The first map shows the logging concessions in relation to Maya villages and lands. The second map illustrates the aggregate territory that the Maya traditionally have used and occupied throughout the present time in southern Belize. In 1997, the TMCC and the Toledo Alcaldes Association published this map in a 150 page "Maya Atlas." See THE MAYA PEOPLE OF SOUTHERN, BELIZE, TOLEDO MAYA CULTURAL COUNCIL & TOLEDO ALCALDES ASSOCIATION, MAYA ATLAS: THE STRUGGLE TO PRESERVE MAYA LAND IN SOUTHERN BELIZE 18 (1997) [hereinafter MAYA ATLAS]. This Atlas also includes a detailed narrative of Maya history and culture.